AThe appeal against conviction is dismissed.
B The appeal against sentence is allowed and the sentence of three years six months’ imprisonment is quashed. A sentence of three years’ imprisonment is imposed in its place.

REASONS OF THE COURT

(Given by Lang J)

Table of Contents

Para No

Introduction [1]

The Crown case [2]

The charge [7]

The appeal against conviction [11]

Did the Judge err in the manner in which he discharged his obligation

under s 220(4)?  [12]
How did the circumstances give rise to a requirement obliging
Mr Nisbet to deal with the GST refund in accordance with
Mr Walbran’s requirements?[27]
This case  [34]
           Our assessment[38]

Did the Judge misdirect the jury in relation to the meaning of

“requirement” for the purposes of s 220(1)(b)? [54]

Was the jury’s conclusion that Mr Nisbet had control of Whariki’s GST

refund unreasonable having regard to the evidence? [62]

The appeal against sentence [68]

Result [81]

Introduction

Mr Nisbet was found guilty by a jury in the District Court at Wellington on a charge of theft by a person in a special relationship. On 17 February 2011 Judge Harrop sentenced him to three and a half years’ imprisonment.[1] He now appeals against both conviction and sentence.

The Crown case

[1] R v Nisbet DC Wellington CRI-2009-091-3751, 17 February 2011.

The charge against Mr Nisbet arose after he entered into a business relationship with Mr Warwick Walbran. The two men formed a company called Whariki Ltd (Whariki) to develop a substantial area of land at Sponge Bay, near Gisborne. They intended to convert the land into residential lots.
The land at Sponge Bay was owned by a company called Tuamotu Ltd (Tuamotu). Tuamotu had earlier agreed to sell the land to Falmouth Properties Ltd (Falmouth), a company wholly owned by Mr Nisbet. Falmouth agreed to on-sell the land to Whariki immediately after acquiring it from Tuamotu.
Mr Walbran invested approximately $560,000 in the venture. In order to formalise their business relationship, Mr Walbran and Mr Nisbet entered into a written shareholders agreement governing the manner in which Whariki was to operate. Mr Walbran did not, however, play any part in the day to day management of Whariki’s affairs. He left that entirely to Mr Nisbet.
In addition to the capital that Mr Walbran provided, Whariki required significant external funding in order to be able to complete the purchase of the land. It obtained that funding from two financiers, one of whom was Blackbird Finance Ltd (Blackbird). Blackbird agreed to advance funds to Whariki on the basis that Whariki would repay the sum…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nisbet v R

Details

AGLC: Nisbet v R [2011] NZCA 285
Case: [2011] NZCA 285
Decision Date: 21 June 2011

CaseChat Overview and Summary

Craig Nisbet was convicted in the District Court of theft by a person in a special relationship, contrary to section 220(1)(b) of the Crimes Act 1961. Nisbet appealed his conviction and sentence to the Court of Appeal of New Zealand. The court found that the appeal against conviction should be dismissed. Although the trial judge erred in his approach to the meaning of the word "requirement" in s 220(1)(b), the error did not prejudice Nisbet or lead to a miscarriage of justice. The evidence was sufficient to establish beyond reasonable doubt that Nisbet was under an obligation to use the GST refund to reduce a loan that Whariki owed to Blackbird Finance. The court found that the appeal against sentence should be allowed. The court imposed a sentence of three years’ imprisonment, in place of the three years and six months’ imprisonment imposed by the District Court.

Orders